§ 30-65.2. Miscellaneous provisions.

(a)

Compliance with laws. The grantee and grantor shall comply with all federal and state laws, as well as all ordinances, resolutions, rules, and regulations of the city heretofore or hereafter adopted or established during the entire term of the franchise including but not limited to all zoning and subdivision regulations.

(b)

Captions. The captions to sections throughout this Act are intended solely to facilitate reading and reference to the sections and provisions of this Act. Such captions shall not affect the meaning or interpretation of this Act.

(c)

Public purpose. All of the provisions of this Act are hereby declared to be for a public purpose and the health, safety, and welfare of the general public, consistent with the maximum permissible exercise of the city's police powers under its Home Rule Charter. Any member of the governing body or city official or employee charged with the enforcement of this Act, acting for the city in the discharge of his or her duties, shall not thereby render himself personally liable; and he or she is hereby relieved from all personal liability for any damage that might accrue to persons or property as a result of any act required or permitted in the discharge of his or her duties.

(d)

Nonenforcement by the city. The grantee shall not be relieved of its obligation to comply with any of the provisions of the franchise by reason of any failure of the city to enforce prompt compliance.

(e)

Subsequent action by state or federal agencies. Should the state, the LPSC, the FCC, or any other agency of the federal government subsequently require the grantee to perform or cease to perform any act which is inconsistent with any provisions of the franchise, the grantee shall so notify the grantor. Upon receipt of such notification, the grantor, in consultation with the grantee, shall determine if a material provision of the franchise is affected. Upon such determination, the parties, in consultation with each other, shall have the right to modify or amend any of the sections of the franchise to such reasonable extent as may be necessary to carry out the full intent and purpose of the franchise.

Should the state, the LPSC, the FCC, or any other agency of the federal government subsequently require the grantor to perform or cease to perform any act which is inconsistent with any provisions of the franchise, the grantor shall so notify the grantee. Upon receipt of such notification, the grantee, in consultation with the grantor, shall determine if a material provision of the franchise is affected. Upon such determination, the parties, in consultation with each other, shall have the right to modify or amend any of the sections of the franchise to such reasonable extent as may be necessary to carry out the full intent and purpose of the franchise.

The grantor may terminate the franchise in the event the grantor and grantee agree that substantial and material compliance with the original proposed terms of the franchise has been frustrated by such state or federal requirement. In such an event, grantee's rights are reserved to pursue whatever remedies it may have, and to comply with the duties and obligations which may be imposed upon it by such state or federal law.

(f)

Causes beyond reasonable control. In the event grantee's performance of any of the terms, conditions, obligations, or requirements of the franchise is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof. Such causes beyond grantee's reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God, civil emergencies and labor unrest or strikes. Grantee shall notify the director whenever performance is prevented or impaired.

(g)

Nonwaiver of regulatory authority. Nothing in this Act shall be deemed to constitute a waiver or limitation of any powers or supervision, regulation and control of the city council, as authorized in section 3-130 of the Home Rule Charter.

(h)

Equal opportunity policy.

(1)

Equal employment opportunity and affirmative action programs. Grantee shall be an equal opportunity/affirmative action employer adhering to all applicable federal, state or municipal laws and regulations.

(2)

Disadvantaged business enterprise or DBE participation policy. The grantee shall make reasonable and good faith efforts to attain an overall goal of 35 percent for the utilization of DBEs in its contracting policies for activities occurring within the city.

(3)

Local employment and procurement practices. Whenever practicable, and to the extent allowed by law, grantee shall make reasonable efforts to obtain all services, personnel, hardware and supplies for the construction, maintenance, and operation of the wireless facilities from businesses located in the city when cost and prices are equal to or lower than sources outside the city.

(4)

Subcontractors.

a.

City to be informed. Grantee shall inform the director of all subcontractors selected by grantee to perform work pursuant to a franchise granted under this Act and any changes thereto. The term "subcontractor" shall not include any lower-tier subcontractors that grantee does not have direct contracts with. Knowledge of a subcontractor by grantor shall not limit or absolve grantee's duties, obligations or warranties under the franchise for any part of the system, and city shall have no liability for any action or inaction by any subcontractor that results in any damage or loss whatsoever to grantee.

b.

Subcontractor relationship. Nothing contained herein or in any agreement between grantee and a subcontractor or vendor shall create (a) any contractual relationship between city and any subcontractor at any tier, or (b) any third-party beneficiary rights in any subcontractor at any tier. Grantee shall at all times be responsible for the work and conduct of its subcontractors at any tier while performing services pursuant to this Act and shall ensure that its subcontractors comply with all applicable terms and conditions of the franchise. Nothing herein shall negate any rights of grantor based upon a separate agreement with any subcontractors.

c.

Contract requirements. In addition to the requirements stipulated in section 70-417, all agreements with subcontractors, including agreements between lower-tier subcontractors with grantee, shall include the following:

1.

A provision acknowledging that all claims are between the contracting parties and waiving any claim against grantor arising from such contracts.

2.

The provisions of subsections 30-64(g) and 30-65.2(i), such policies to name grantor as an additional insured and to conform with the insurance requirements of section 30-64 hereof. Insurance amounts for each subcontractor shall be determined by grantee in its reasonable discretion.

3.

The listing of specific contractual provisions herein shall not relieve or limit grantee's obligation under this section above to ensure compliance with the franchise by subcontractors.

(5)

Inspection of book and records. If grantor has a rational basis for believing that a grantee has failed to comply with subsections (1), (2), (3) and (4), then grantor shall, after reasonable notice, have the right to inspect at any time during normal business hours, all books, records, financial statements and other like materials of the grantee relevant to grantee's compliance with such subsections.

(i)

Limitation of liability. Grantee's liability to the grantor for damages in connection with this Act shall not exceed the total amount of $1,000,000.00, provided the limitations of liability shall not apply to damages relating to or arising from loss of life, bodily injury, personal injury, damage to property, contamination or adverse effects on the environment or intellectual property infringement. Grantor's liability to the grantee for damages in connection with this Act shall not exceed the total amount of $1,000,000.00, provided the limitations of liability shall not apply to damages relating to or arising from loss of life, bodily injury, personal injury, damage to property, contamination or adverse effects on the environment or intellectual property infringement.

(j)

Intellectual property infringement indemnity. Grantee will indemnify the grantor and their respective officers, employees, contractors, consultants, members and agents, but not any customers or third parties ("indemnitees"), from losses, costs and damages and defend any suit or proceeding brought against the indemnitees to the extent that the suit or proceeding is based on a claim that the network operations constitute infringement of any United States patent, mask work, trade secret or copyright and grantee will pay, or grantee will cause the supplier of the infringing network operations to pay, all damages awarded by final judgment (from which no appeal may be taken) against the indemnities, but not any customers or third parties, holding that the network operations do so infringe, on condition that grantee:

(1)

Is promptly informed and furnished a copy of each communication, notice or other action relating to the alleged infringement,

(2)

Is given authority, information and assistance necessary to defend or settle the suit or proceeding in a manner as grantee may determine, and

(3)

Is given sole control of the defense (including the right to select counsel and to require and allow the supplier of the infringing network operations to pay damages and defend as provided herein), and the sole right to compromise and settle the suit or proceeding; provided, however, that no such compromise or settlement shall impose any liability or burden on the grantor without their consent.

(4)

If any of the network operations are held to infringe any valid United States patent, mask work, trade secret or copyright as set forth above, and an injunction from a court of competent jurisdiction permanently prohibits the use of the same in the network operations in the wireless services in the city, or if grantee believes infringement is likely, then grantee will

a.

Procure the right to use the network operations in the wireless services free of any liability for infringement;

b.

Replace or modify the network operations in the wireless services in the city with a non-infringing substitute otherwise complying substantially with the specifications for the wireless services in the city; or

c.

Comply with the subsequent sentence. In the event that (i) a court of competent jurisdiction determines that the network operations infringe the above-defined rights of another party, (ii) all right of appeal or stay is exhausted as to such order, and (iii) grantee is unable to replace or modify such infringing network operations in the wireless services in the city or otherwise procure the right to continue using the network operations in the wireless services in the city, then grantee will be entitled to remove the infringing network operations from the wireless services in the city and obtain substitutes that will result in the wireless services in the city performing substantially as required in this Act.

d.

In no event will grantee or its suppliers be liable for an infringement that:

i.

though it occurs in grantee's wireless service area, did not result from the use of products or services provided by grantee or its affiliates or subcontractors; or

ii.

would not have existed but for modification of, or additions to, the network operations by the city or its contractors or agents.

iii.

Prior to a final determination that the infringement arose from clauses (i) or (ii) in the preceding sentence, grantee shall remain fully responsible, at its expense, for the defense and indemnification of any infringement claim in accordance with this section: provided, that if it is finally determined that the infringement arose from clauses (i) or (ii) in the preceding sentences, then grantor will reimburse grantee for its reasonable expenses (including reasonable litigation costs and attorney's fees) incurred therein. The foregoing in this section contains the sole and exclusive liability for grantee's and its suppliers' indemnity against infringement in this section, whether direct or contributory, and is in lieu of all warranties, express, implied or statutory in regard thereto, including, without limitation, the warranty against infringement specified in the Uniform Commercial Code.

(k)

Confidentiality. Grantor agrees to keep confidential any information provided by grantee to the extent allowed by the Louisiana Public Records Act and other applicable laws.

(l)

Acceptance.

a.

Filing. Grantee shall, within 60 days after the approval of a wireless franchise by the city council, file with the clerk of council, with copies filed electronically with the director, the Council Utilities Regulatory Office, and city attorney, a written acceptance of the franchise. Such acceptance shall be signed and acknowledged by an authorized officer of the grantee and attested by its secretary, if required under its corporate governing documents. Such acceptance shall be substantially in the following form:

TO THE COUNCIL OF THE CITY OF NEW ORLEANS

The Grantee, _______ a _______ organized and existing under and by virtue of the laws of the State of _______, does hereby accept the Franchise approved by the City of New Orleans by Ordinance No. ___ M.C.S. enacted the ___ day of _______, ___, granting _______ the Franchise to occupy or attach to City Property or the City's Rights-of-Way to install, maintain and/or repair a wireless communications facilities within the City of New Orleans for the purpose of providing wireless services, subject to certain terms, conditions and limitations as set forth therein. Any amendment or revision to the aforesaid Ordinances shall require a separate acceptance by Grantee.

NAME

BY: _______

ITS: _______

ATTEST:

_______
SECRETARY

Dated at _____, this the ___ day of _______, 20___.

b.

Administrative procedures. The acceptance shall be read into the minutes of the Council of the City of New Orleans.

c.

Failure to file. In event such acceptance is not filed within such time, the wireless franchise and the rights and privileges granted therein shall be null and void.

(m)

Administrative procedures. The director shall formulate all applications and other documents required herein and shall implement appropriate procedures to receive and process siting applications herein, as may be governed by the Home Rule Charter.

(n)

Miscellaneous. Except as expressly set forth in this Act, the Wireline Telecommunications Franchise Act, or its successor Code section, shall not apply to any franchise granted pursuant to this Act.

(M.C.S., Ord. No. 27999, § 1, 3-14-19)